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tered into a supplemental agreement with Yount whereby the terms of the former contract for clearing, which would have expired on October 22, 1919, were to remain in full force and effect for an additional period of 18 months. This contract of September 22d, among other things, provided:

"In consideration of the foregoing the parties of the second part do hereby agree that they will forthwith proceed in a diligent and businesslike way to clear said lands ready for cultivation as provided in said former contract, and that they will clear not less than one hundred acres per month, and that they will, before the last day of October, 1919, clear one hundred acres of said land in addition to what is already cleared and that they will likewise clear one hundred acres each

livered to them by Rhoads Bros. & Co. coming from my property and particularly all lumber to be cut on a certain contract executed November 3, 1919, between Rhoads Bros. & for two million feet of lumber; said sum of Co. and Baker-Matthews Lumber Company six ($6.00) dollars per thousand feet to be

held by said Baker-Matthews Lumber Company, to be paid out by them on the mutual agreement between myself and Rhoads Bros. & Co. It is understood that Baker-Matthews Lumber Company are not to retain the sum of $6.00 per thousand feet on any lumber except that manufactured and delivered under a certain contract dated November 3rd, 1919, between Rhoads Bros. & Co. and Baker-Matthews Lumber Company."

A sum in excess of $2,000 had accumulated

month thereafter until they have fully com- in the hands of Baker-Matthews Lumber plied with the terms of said original contract by having all the lands cleared ready for cultivation on which they have cut any timber less only forty acres by May 1st, 1920.

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It is further agreed and understood that this extension agreement is not in any way to release or impair the lien which was retained by party of the first part on timber and the products thereof as provided in the original agreement, and it is further agreed that, if the parties of the second part make default in any of the provisions and conditions of this contract, that they are to have no further right to cut or remove any timber from any of said land or to remove any lumber from said land until this contract is fully complied with."

On November 3, 1919, Rhoads Bros. & Co. entered into another contract with BakerMatthews Lumber Company, which was entirely independent of the former contract between those parties of May 12, 1919. The

contract with Rhoads Bros. & Co. of November 3, 1919, provided that Rhoads Bros. & Co. should manufacture for the Baker-Matthews Lumber Co. 2,000,000 feet of lumber at prices specified therein; and this contract also provided:

"Performance of this contract by parties of the second part (Baker-Matthews Lbr. Co.) is contingent upon said first parties obtaining

from Dr. W. E. Yount, a release from any and all claims which he has, or might have, against the lumber to be delivered under this contract; such release to be subject to the approval of

said second parties."

On November 7, 1919, W. E. Yount executed the following instrument:

"For and in consideration of the sum of one ($1.00) dollar and other good and valuable considerations in hand paid, the receipt of which is hereby acknowledged, I hereby release any and all liens or claims I may have against any and all lumber cut from and off of my property in Craighead County, Ark., and also any lien or claim which I may have against any and all timber and lumber which may hereafter be cut from and off of any land owned by me in said county and in lieu of said lien or claim Baker-Matthews Lumber Company agree to hold the sum of six ($6.00) dollars per thousand feet on all lumber hereafter cut and de

Company under the provisions of the lastmentioned instrument. On June 3, 1920, Yount executed to Rhoads Bros. & Co. the following instrument:

"For value received I hereby transfer, set over and assign to Rhoads Bros. & Co., all of my right, title and interest in and to the sum of two thousand dollars ($2,000) now in the possession of Baker-Matthews Lumber Company under the provisions of the contract dated November 3d, 1919, between Rhoads Bros. & Co. and Baker-Matthews Lbr. Co., or under any contract subsequently executed between the same parties and also under the release or contract of date of November 7th, 1919, and signed by me and also signed by Rhoads Bros. & Co., agreeing to the provisions of the release or contract of date November 7th, 1919, hereby waiving all my rights of every kind and description which I may, or might, have under any of said contracts as to the said sum of two thousand dollars ($2,000).

"Witness my hand this 3d day of June, 1920. "[Signed] W. E. Yount.

"Witnesses: Frank Kelly.

"W. E. Walker."

On June 7, 1920, Rhoads Bros. & Co. wrote to Baker-Matthews Lumber Company as follows:

"Gentlemen: As we have been in an awful

pinch and Mr. E. B. Ellis was one of our largest creditors and has helped us out on the balance of the $2,000.00, we hereby ask that you pay the $2,000.00 released and mentioned above to him and charge to our account.

"Rhoads Bros. & Company, "By J. T. Rhoads."

Upon receiving the above communication Ellis presented same to the Baker-Matthews Lumber Company, and they wrote him the following letter on June 8, 1920:

"Memphis, Tenn., June 8, 1920. "Mr. E. B. Ellis, Black Oak, ArkansasDear Sir: You have presented to us this morning the assignment and release of W. E. Yount dated June 3d, 1920, transferring $2,000 of the fund in our hands arising under certain contract of date November 7th, 1919, and some subsequent contracts with an order to pay the amount of this fund to you. We desire to advise you that we cannot pay this sum to-day,

(248 S.W.)

for the following reason: First. We do not a breach of the lumber manufacturing conknow what amount will be due Rhoads Bros. tract between it and Baker-Matthews Lum& Co. under our contract until all the lumber ber Company. Yount also filed a separate is taken up and shipped out, which we hope to have done this week. If you are not already er-Matthews Lumber Company, alleging its answer and cross-complaint against the Bakadvised, it is true that Rhoads Bros. & Co., failure to pay him $6,000 per thousand feet under their contracts with us guaranteed the title to this lumber to be free and clear of all for stumpage. The matters growing out of incumbrances. We are in litigation with a this cross-complaint were settled and Yount creditor of Rhoads Bros. & Co. at Jonesboro has passed out of the case. It is not necin which this question is involved, and we there-essary to make further reference to the fore must say to you at this time we cannot pleadings filed by him. pay out this money to you."

The plaintiff filed a supplemental complaint against Rhoads Bros. & Co. to foreclose a mortgage executed by it to the plaintiff, which was answered by Rhoads Bros. & Co. Further reference to the pleadings on the foreclosure of this mortgage is also

unnecessary.

On June 11, 1920, Baker-Matthews Lumber Company instituted this action against Yount, Ellis, and Rhoads Bros. & Co. It alleged that it had in its hands over $2,000 which it had been holding for the protection of Yount; that it had advanced large sums of money to Rhoads Bros. & Co. to pay for labor and to purchase timber; that, according to the contract with Rhoads Bros. & Co., the lumber manufactured by them was to be kept free from all liens; that this pro-was that raised by the complaint of the plainvision had been violated by permitting A. B. Jones Company to procure a judgment for over $2,500 and to levy an execution on the lumber, for which plaintiff had brought replevin. The plaintiff alleged that Yount had attempted to assign the sum of $2,000 to Rhoads Bros. & Co., who had attempted to reassign the same to Ellis; that plaintiff had refused to accept the assignment; that the account between plaintiff and Rhoads Bros. & Co. involved large sums of money; that final settlement was not due until time of shipment of the lumber, a portion of which had not yet been shipped; that the account was so complicated and uncertain that it could not be determined whether plaintiff would be indebted to Rhoads Bros. & Co. or not on the completion of their contract. The plaintiff then tendered the sum of $2,000 into court to be held pending the replevin litigation with A. B. Jones Company and final completion of the contract with Rhoads Bros. & Co. and a settlement of its account with the plaintiff.

Ellis filed a separate answer setting up his ownership of the $2,000 under the instrument signed by Yount and Rhoads Bros. & Co. above mentioned, and denied the right of plaintiff to withhold payment of the same. He also set up that Rhoads Bros. & Co. were indebted to him for supplies furnished it in opening up and clearing the lands for W. E. Yount, and alleged that the transfer and assignment of the $2,000 was made for his benefit to enable him to furnish Rhoads Bros. & Co. the supplies necessary to enable the latter to perform its contract with Yount. He made his answer a cross-complaint, and asked for judgment in the sum of $2,000, with interest from June 8, 1920, the time plaintiff refused to pay him.

Rhoads Bros. & Co. also answered denying the allegations of the complaint, and made their answer a cross-complaint, setting up

Upon the pleadings and the documentary evidence as above set forth, and the depositions of witnesses, the court found that the only issue presented to it for decision tiff and the answer and cross-complaint of Ellis concerning the sum of $2,000 which had been tendered into court and deposited with the American Trust Company under the court's direction. On this issue the court found "all the issues of fact and law in favor of the plaintiff, Baker-Matthews Lumber Company, and against the defendant and cross-complainant, E. B. Ellis," and entered its decree dismissing the cross-complaint of Ellis for want of equity and directing that the sum of $2,000 in the hands of the depository Trust Company be paid over to the plaintiff. The court also found that the defendant, Rhoads Bros. & Co., was indebted to the plaintiff in the sum of $3,202.60, for which amount it rendered judgment against the individual members of the partnership. This decree was entered on January 7, 1922, from which Ellis prayed an appeal. Later, on April 21, 1922, the court made findings and rendered a final decree against Rhoads Bros. & Co., from which they prayed an appeal, but which has not been prosecuted by them to this court; at least no brief has been filed in their behalf, and therefore their appeal will be treated as abandoned. We will decide only the issues presented by this record as they pertain to the controversy between Ellis and the Baker-Matthews Lumber Company. Such other facts as we deem necessary will be referred to as we proceed. For convenience, the Baker-Matthews Lumber Company will hereafter be called the appellee, Ellis will be referred to as the appellant, and Rhoads Bros. & Co. will be called Rhoads Bros.

It will be observed that the contracts between Yount and Rhoads Bros. provided for the clearing of the timber on the lands of Yount by Rhoads Bros. within a certain time and in a certain manner therein specified. To secure the performance of the contract on the part of Rhoads Bros. Yount retained a

lien on all timber, logs, and products thereof. | ficiary. A letter in the record from Yount The fact is established by the undisputed evi- to the appellee designates the same as a dence that Rhoads Bros. had not complied "trust fund," and a letter from appellee to with the terms of the contract, and were Yount refers to the fund and states that it is therefore in default, which, under the express to be paid out by the appellee on the joint terms of the contract, rendered the lien of agreement of Yount and Rhoads Bros., and Yount effective. As shown by the contract asks Yount to get Rhoads Bros.' written order between appellee and Rhoads Bros. of No-authorizing the appellee to pay the balance vember 3, 1919, the appellee had knowledge due on the fund. Baker in his testimony desof the lien retained by Yount on all the tim- ignates it as "a sort of trust fund held for ber and products manufactured by Rhoads these parties, to be determined between them Bros. from Yount's land, because on that day as to whom this was to be paid." The fund appellee entered into a contract with Rhoads was in lieu of the lien which Yount had on Bros. for the purchase of 2,000,000 feet of the lumber which the appellee had purchased lumber at certain prices therein specified from Rhoads Bros. The appellee, knowing to be manufactured from the timber on that Yount had a lien on the lumber, agreed Yount's land, and the performance of this in effect that, if Yount would release his contract on the part of the appellee was lien and allow it to purchase the lumber from contingent upon Rhoads Bros. obtaining from Rhoads Bros. unincumbered by such lien, Yount a release of any and all claims they would hold this sum of $2,000 for his which Yount had or might have against the sole benefit, and would pay the same on the lumber, such release to be approved by the mutual agreement between Yount and Rhoads appellee. Rhoads Bros. obtained such re- Bros. Such is the unambiguous wording of lease as evidenced by the instrument of No- the stumpage agreement, by which, as we vember 7, 1919, signed by Yount, the effect have said, the appellee was bound. The asof which was to release his lien on all the signment of June 3, 1920, of Yount to Rhoads lumber cut from his land provided the ap- Bros. and the written order of Rhoads Bros. pellee would hold for his benefit the sum of of June 7, 1920, asking that the appellee $6 per 1,000 feet on all lumber cut and pay the $2,000 to Ellis, was tantamount to delivered to the appellee by Rhoads Bros., a mutual agreement between Yount and which sum was to be held by the appellee and Rhoads Bros. that Ellis should receive the to be paid out by it on the "mutual agree- fund. The testimony of Yount and J. T. ment between Yount and Rhoads Bros." By Rhoads was to the effect that the $2,000 in an indorsement on the instrument Rhoads controversy was to constitute a kind of Bros. authorized the appellee to carry out budget, the larger part of which was to the terms of the instrument. be paid to Ellis. Yount so understood it at the time he executed the assignment. Yount realized that he would receive the benefit from the use of the fund by Rhoads Bros. in paying Ellis the amount advanced by him to Rhoads Bros. because that would better enable Rhoads Bros. to carry out their contract of clearing Yount's land. At any rate, that was a matter solely for the determination of Yount and Rhoads Bros., a right which appellee, the trustee, could not challenge.

[1] The allegations of the complaint and the undisputed testimony show that the $2,000 now in controversy had accumulated in the hands of the appellee under the terms of the contract of November 3, 1919, between Rhoads Bros. and the appellee, and the instrument of November 7, 1919, which hereafter for convenience will be referred to as the "stumpage agreement." On the 3d day of June, 1920, for value received, Yount transferred or assigned his interest in the $2,000 to Rhoads Bros. waiving all rights of every kind which he had on said $2,000 under his contract with Rhoads Bros., and on June 7, 1920, Rhoads Bros., by letter, requested the appellee to pay the same to Ellis, which the appellee refused to do.

[2] Having reached the conclusion that the fund in controversy was a trust fund, the appellee could not refuse to pay Ellis, to whom the fund had been assigned, without a breach of the trust. The appellee could not hold the fund as if the same belonged Now, considering the various written in- to Rhoads Bros. and claim the right to set struments set out above, especially the con- off against it any indebtedness that Rhoads tract between Rhoads Bros. and the appel- Bros. might be due the appellee. A trustee lee of November 3, 1919, and the stumpage cannot set off against the trust indebtedness agreement of November 7, 1919, to which the an independent debt due him individually. appellee became a party, and by which it The trustee is not a debtor. Therefore, any was bound in purchasing and receiving from debt owing by him or due to him individualRhoads Bros. the lumber manufactured by ly is not due in the same right or capacity as them, with knowledge of Yount's lien, and a trustee, and lacks mutuality. He cannot considering likewise the correspondence be set off such debts against the trust fund, tween Yount and the appellee, and the oral but must pay the same to the beneficiary or testimony, we have reached the conclusion the one to whom the trust is properly assignthat the $2,000 in controversy was a trusted. The trustee cannot in this way reap a fund of which Yount was the sole bene- personal advantage from his trust relation.

(248 S.W.)

39 Cyc. 479; 24 R. C. L. § 16, p. 808; Knowl-inals condemned to death in the hands of es v. Goodrich, 60 Ill. App. 506; Dodd v. county officers, and to require such officers to Wiship, 133 Mass. 359; Smith v. Perry, 197 care for the prisoners until the date of their Mo. 438, 95 S. W. 337. See also, Sorrels v. execution, and in that event it might impose Childers, 129 Ark. 149, 195 S. W. 1, L. R. A. the costs upon the county. 1917F, 430.

Having reached the conclusion that, as between Ellis and the appellee, the fund in controversy belongs to Ellis, the other interesting questions presented in the elaborate briefs of counsel pass out. The decree is therefore reversed, and the cause will be remanded, with directions to enter a decree for Ellis in accordance with the prayer of his cross-complaint.

PHILLIPS COUNTY v. ARKANSAS STATE
PENITENTIARY. (No. 182.)

(Supreme Court of Arkansas. Feb. 19, 1923.)

Dissenting opinion.

For majority opinion, see 247 S. W. 80.

HART, J. (dissenting). From the beginning a state prison system of some sort has been adopted by statute in this state and its management and operation has been placed in the hands of state officers or state boards and its maintenance has been at the expense of the state.

Formerly the state cared for all prisoners who were sentenced to be confined in the state penitentiary, and it was made the duty

of the sheriff of the various counties to im

prison convicts sentenced to death until the

date of their execution and to execute them. The statute also provided that the expenses attending the imprisonment and execution of said convicts should be paid by the county. This was a valid statute; just as the Legislature could have passed a statute requiring each county to erect and maintain a county prison for the confinement of all the prisoners whether they had committed felonies or misdemeanors.

In the instant case, however, the state has reserved to itself the right and power to execute prisoners sentenced to death, and also imposes the duty upon the state officers to confine such prisoners in the state penitentiary until the date of their execution.

The state penitentiary is essentially. and necessarily a state institution, and taxation for the support and maintenance of which, in whole or in part, cannot be imposed upon a single county, but must be borne by the whole state. The contrary view, in our judgment is opposed to the principles decided in State v. Craighead County, 114 Ark. 278, 169 S. W. 964, and Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183.

In other words the General Assembly may make the execution of condemned criminals, and their confinement for that purpose, a function of the county government, in which event the expense thereof would have to be borne by the county. On the other hand, this duty might be imposed upon the state as a function of the state government, in which event the expense thereof would have to be borne by the state. The controlling question here is which agency has the duty to perform, and it appears to us that the state through its General Assembly has assumed this duty, and, that being true, it follows that the expense thereof must be borne by

the state.

The penitentiary is without question a state institution, and it has been made the function of the managers of that institution to contine and execute criminals who haye been sentenced to death, and the state should therefore pay the operating expense, for such it is.

We perceive no difference in principle between imposing the expense on the counties and making the counties pay for feeding, housing, guarding, and clothing or furnish

Judge Smith and myself are of the opinion, however, that the Legislature cannot establish a penitentiary under the manageing medical attention to the convicts from ment of a state board or state officers, and give them the power and authority to imprison convicts sentenced to death until the date of their execution and to execute them, and at the same time place the cost thereof upon the various counties. If the state adopts the plan of bestowing upon the officers of the state penitentiary the duty to confine prisoners sentenced to death in the state penitentiary until the date of the execution and to execute them, the state must bear the expenses thereof, and the cost cannot be placed upon the counties.

On the other hand, the Legislature has the power to again place the execution of crim

the respective counties, which would in effect apportion the cost of the operation of that institution against the different counties per capita, according to the number of convicts coming from the respective counties. And if this can be done in regard to the penitentiary, why may it not be done in the management of the eleemosynary institutions? And in what manner may it be determined how the expenses of government shall be borne if we depart from the principle settled in the cases cited, in both this and the majority opinion, of requiring the state to bear the expense of the state's government? Therefore we respectfully dissent.

BROWN v. ST. LOUIS & S. F. RY. CO. (No. 3000.)

(Springfield Court of Appeals. Missouri. Jan. 29, 1923. Rehearing Denied Feb. 13, 1923.)

action

drainage required by Rev. St. 1919, § 9953, where he charges that his damage by overflow was caused by the insufficiency of a particular opening in the railroad embankment, he is confined to that one opening.

7. Railroads 114(4) — Evidence of inadequate opening for water held sufficient as against demurrer.

1. Limitation of actions 34(6)-Five-year
statute applicable to landowner's
against railroad failing to provide drainage.
The five-year statute of limitation applies8
to a landowner's action against a railroad com-
pany for damages caused by its neglect to pro-
vide drainage required by Rev. St. 1919, 88
9850, 9953.

2. Judgment 598. Railroad embankment without adequate openings for water disposal nuisance, and authorizes successive actions.

A railroad embankment without adequate openings to drain off surface water is, since Laws 1907, p. 169, now Rev. St. 1919, § 9953, requiring adequate openings in a right of way to drain off water, an abatable nuisance to the extent of remedying the defects, and damages caused by failure to put in sufficient and adequate openings are to be sued for and recovered by successive actions within five years after such damage occurs. 3. Limitation of actions

34(6)—Action for damages from flood accruing within five years not barred by statute.

Where a cause of action for damages from overflow caused by a railway company's failure to construct adequate openings required by Rev. St. 1919, § 9953, accrued in less than five years before the commencement of the action, it was not barred by limitation, though defendant had maintained its roadbed unchanged for the period of limitations. 4. Railroads

108-Overflow water is "surface water" within statute.

Overflow water is "surface water" within Rev. St. 1919, § 9953, requiring a railroad company to provide openings sufficient to secure proper drainage, and the statute means that as nearly as practical provision must be made to permit the water, including overflow, to pass unobstructed by the railroad grade in such a way as not to cause injury to landowners.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Surface Water.]

5. Railroads

114(1)-Landowner held entitled to charge damage by flood to insufficiency of one opening.

Where damage to plaintiff's land by a flood was caused by a railroad company's failure to provide proper drainage required by Rev. St. 1919, § 9953, the company having attempted to take care of the excessive flood waters by one opening under a bridge at a creek could not be heard to say that another opening which it had maintained for another purpose was too small to carry off the water, and that plaintiff's action should have been based on that

fact.

6. Railroads 114(H)-Proof confined to particular opening specified as cause of overflow.

In an action by a landowner based on the failure of a railway company to provide proper

In a landowner's action under Rev. St. 1919, 9953, based on alleged failure of a railway company to maintain an opening under a bridge across a creek of size sufficient to permit flood water to pass, evidence showing the company's failure to provide an adequate opening held sufficient as against a demurrer.

8. Railroads 114(2)-Evidence of enlargement of opening after flood inadmissible.

In a landowner's action under Rev. St. 1919, § 9953, based on a railway company's failure to maintain an opening under a bridge across a creek of size sufficient to permit flood water to pass, evidence that defendant enlarged the opening under the bridge after the alleged cause of action accrued was inadmissible.

9. Railroads

114(2)—Evidence of notice of defect in opening for water held properly excluded.

In a landowner's action under Rev. St. 1919, § 9953, based on a railway company's failure to maintain an opening under a bridge across a creek of size sufficient to permit flood water to pass, where there was no question of want of notice that the opening was too small, evidence that the company had been notified that the bridge was inadequate, and had promised to remedy the defect, was properly excluded. 10. Railroads 114(4)-Refusal of instructions on duty to provide drainage held error. In action under Rev. St. 1919, § 9953, for damages to land from overflow caused by inadequate opening in a railroad bridge over a creek, where instructions given did not present issues clearly, in that the terms "freshet” and "surface water" were used without being defined, it being doubtful whether the jury could understand just what was defendant's duty in regard to the opening, and a requested instruction would have aided in determining defendant's duty, in that it distinguished between "surface water" and water coming down the creek, its refusal was error. 11. Railroads 114(4)-Instruction on duty to provide drainage held misleading.

a

In action under Rev. St. 1919, § 9953, for damages to land from overflow caused by inadequate opening in a railroad bridge over creek, where damage was caused by water backing up and breaking over the embankment at a place distant from the channel of the creek, an instruction that an opening under the bridge which would carry the water that surface water as should reasonably be expected to flow into the channel of the creek was sufficient was erroneous in that the jury were led to believe defendant was not liable for damages caused by water rising to such extent as to wash away the embankment at the place where the break occurred.

came down in the channel of the creek and such

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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